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Citizens United and the 2012 Campaign

Citizens United is one of the most misunderstood Supreme Court decisions ever. It doesn’t stand for what many people say it does.

Take, for example, President Obama’s famous statement that the decision “reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” In one sentence, the former law professor made four errors of law.

First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which prohibited corporate donations to candidates and parties. Citizens United didn’t touch that. Instead, the overturned precedent was a 1990 case that, for the first and only time, allowed a restriction on political speech based on something other than the appearance of corruption.

Second, the “floodgates” point depends upon how you define those terms. As even the July 22 New York Times magazine reported, there’s no significant change in corporate spending this cycle. There are certainly people running Super PACs who would otherwise be supporting candidates direct, but Citizens United didn’t cause Super PACs (as I’ll explain shortly). And the rules affecting the wealthy individuals who are spending more haven’t changed at all. It’s unclear that and “floodgates” have opened or which special interests didn’t exist before.

The solution is obvious: Liberalize rather than restrict the system.

Third, the rights of foreigners — corporate or otherwise — is another issue about which Citizens United said nothing. Indeed, just this year, the Supreme Court summarily upheld the restriction on foreign spending in political campaigns.

Fourth and finally, while independent spending on elections now has few limits, candidates and parties aren’t so lucky, and neither are their donors. Again, Citizens United didn’t affect laws regarding individual or corporate contributions to candidates.

More important than Citizens United was SpeechNow.org v. FEC, decided two months later in the D.C. Circuit. That ruling removed limits on donations to political action committees, thus making these PACs “super” and freeing people to pool money the same way one rich person can alone.

And so, if you’re concerned about the money spend on elections — though Americans spend more on chewing gum and Easter candy — the problem isn’t with big corporate players. That is another misapprehension: Exxon, Halliburton and all these “evil” companies (or even the good ones) are not suddenly dominating the political conversation.. The spend little money on political advertising, partly because it’s more effective to lobby, but mostly because they wouldn’t want to alienate half their customers. As Michael Jordan famously said, “Republicans buy shoes, too.”

ON the other hand, groups composed of individuals and smaller players now get to speak: Your National Federation of Independent Business and Sierra Clubs, your ACLUs and Planned Parenthoods. So even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech levels that field. Moreover, people don’t lose rights when they get together, be it in unions, advocacy groups, clubs, forprofit companies or any other way.

Nevertheless, various bills and constitutional amendments have been proposed to remedy some of Citizens United’s perceived ills. The idea behind these efforts is that elections will be cleaner if we can only eliminate private campaign money.

The underlying problem, however, isn’t the under-regulation of independent spending but the attempt to manage political speech in the first place. Political money is like water: it’ll flow somewhere because what government does matters and people want to speak about their concerns. To the extent that “money in politics” is a problem, the solution is to reduce the political scope that money can influence. Shrink government, and you’ll shrink the amount people spend trying to get a piece of the pie.

While we await that shrinkage, we do have to address the core flaw in the campaign finance regime. That original sin was committed by the Supreme Court, not in Citizens United, but in the 1976 Buckley v. Valeo. By rewriting the Watergate-era Federal Election Campaign Act to remove spending limits but not contribution caps, Buckley upset Congress’s balance reform.

That’s why politicians spend all their time fundraising. Moreover, the regulations have pushed money away from candidates and toward advocacy groups, undermining the worthy goal of government accountability.

The solution is obvious: Liberalize rather than restrict the system. Get rid of limits on individual contributions, and then require disclosures for those who donate amounts big enough for the interest in preventing corruption to outweigh the potential harassment. Then the big boys will have to put their reputations on the line, but not the average person. Let voters weigh what a donation’s source means to them, rather than allowing politicians to write rules benefiting themselves.

We no have a system that’s unbalanced and unworkable. At some point, however, there will be enough incumbents who feel that they’re losing message control to such an extent that they’ll allow fairer political markets. Earlier this summer, for example, the Democratic governor of Illinois signed a law allowing unlimited contributions in races with significant independent spending. This deregulation is an act of political selfpreservation, but that’s fine.

Once more politicians realize that they can’t prevent communities from organizing, they’ll want to capture more of their dollars. Stephen Colbert would then have to focus on other laws to lampoon, but I’m confident that he can do that and we’ll be better off on all counts.

Ultimately, the way to “take back our democracy” — to invoke the name of the campaignfinance hearing at which I recently testified — isn’t to further restrict political speech but to rethink the basic premise of existing regulations.